Duress

1. Duress Contracts – Prof. Merges March 10, 2011

6. July 28, 1965 - During a noontime press conference, President Johnson announces he will send 44 combat battalions to Vietnam increasing the U.S. military presence to 125,000 men. Monthly draft calls are doubled to 35,000. "I have asked the commanding general, General Westmoreland, what more he needs to meet this mounting aggression. He has told me. And we will meet his needs. We cannot be defeated by force of arms. We will stand in Vietnam."

7. "...I do not find it easy to send the flower of our youth, our finest young men, into battle. I have spoken to you today of the divisions and the forces and the battalions and the units, but I know them all, every one. I have seen them in a thousand streets, of a hundred towns, in every state in this union, working and laughing and building, and filled with hope and life. I think I know, too, how their mothers weep and how their families sorrow."

8. Austin Instrument v. Loral • Facts • Procedural History

9. Who sued whom 1st? • Why?

10. Austin Instrument v. Loral • Facts vs. law • P. 344, see also n. 3. • Dissent, p. 346-47

11. Important Facts • What was Loral’s bargaining position on 7/15/1965?

12. Important Facts • What was Loral’s bargaining position on 7/16/1965? • Constraints/pressures on Loral • Tight schedule (Sept. Oct. Nov. deliveries); Liquidated damages clause in gov’t K • Reputation/future business in high-demand, time-sensitive market

13. What is the legal standard under this case?

14. What is the legal standard under this case? “Austin’s threat . . . Deprived Loral of its free will.”  p. 344, bottom

15. Why couldn’t Loral sue for breach?

16. Loral’s 7/22 letter “We have feverishly surveyed other sources of supply and find that because of the prevailing military exigencies, were they to start from scratch as would have to be the case, they could not even remotely begin to deliver in time . . . Accordingly, we are left with no choice or alternative but to meet your conditions.”

17. “No adequate remedy at law” • How was Loral’s situation like that of a plaintiff seeking specific performance? • Attempts to “cover” (find replacements in the market) were unavailing • See Narisimhan, YLJ, 347 n. 3: “Self-help”

18. Odorizzi v. Bloomfield School Dist.

20. In 1965 Artesia, Bloomfield, and Carmenita School Districts unified and became known as the ABC Unified School District.

21. http://hnn.us/articles/11316.html Though there are dozens of other individuals who could be mentioned who were influential, the gay movement became even more public with a demonstration in Los Angeles in the early 1960's protesting the U.S. military policy against gays and lesbians, the first public gay demonstration and a forerunner of the gay and lesbian parades.

22. . . . it was quickly recognized there was a need for a more public dissemination of information and this led to the formation of a public gay magazine, ONE, and a separate organization. Since the term homosexual could not then be listed in the telephone book or even mentioned very publicly, the title, One, was picked. It soon appeared on select newsstands and homosexuality was out in the open.

23. Slater continued to fight other battles on behalf of the movement. The most notable involved a schoolteacher named Don Odorizzi. Slater, with the assistance of Jim Schneider, was able to help Odorizzi win a significant case of Undue Influence on a schoolteacher by the Bloomfield School District. The case is still being taught in law schools today.

24. Stonewall: June, 1969

25. Odorizzi v. Bloomfield School Dist. • Facts • History

26. Why not duress?

27. Why not duress? • “the action or threat in duress or menace must be unlawful . . .”

28. What was the holding?

29. Odirizzi • Undue influence: focus on the nature of the threat

30. Odirizzi • Undue influence: focus on the nature of the threat • Threat-maker’s position; nature of threat • Victim’s vulnerability

31. What must be overcome? • The will vs. judgment • Interesting distinction . . . • Factors, p. 349

32. Misrepresentation

33. Cicero

34. Laidlaw v. Organ

35. Swinton • Facts • History

37. Cause of action? • Status of K

38. Cause of action? • Status of K • Holding

39. Swinton “no allegation of false statement or representation, or of any half truth” “concealment in the simple sense of mere failure to reveal”

40. P 354 • “If this defendant is liable . . .” • Why not?

41. Kannavos • Facts • History

43. Cause of action • How different from Swinton?

44. Representations in Kannavos • The ad

45. Representations in Kannavos

46. “IF he does speak, he is bound to speak honestly . . .”